Case struck out

[JBoss]

Hi,

I was having some issues with some double glazing that had been installed. We'd paid approx 80% of the bill but withheld the rest as there were numerous minor issues with the windows.

That was almost 4 years ago...

Last year, the installer issued small claims court proceedings against me for the rest of the payment. I defended the claim and a court date was set for mid-June 2022.

I've just received a letter from the court stating that the case has been struck out as the claimant didn't pay the hearing fee in time.

Does this mean that the case is well and truly buried and the claimant can't pursue me again - or does it just mean that the claimant may start again and actually pay the court fee?

Thanks,
JBoss

[atticus]

This happens quite often. I am sorry to say that my experience is that claimants will apply to have the case reinstated, apologising for their mistake in not paying the hearing fee, and that courts will allow this.

Until that happens, the case is dead and buried. But it may be exhumed and resurrected.

[JBoss]

Thanks for the response...

JBoss

[JBoss]

Hi all,

Well after a year, I finally received a letter from the court asking me to attend a 30 minute hearing.

I assumed that the claimant had reinstated the case and that this was the actual hearing (although I expected the hearing to be 2 hours.)


(This is from the notes I made at court - so probably not 100% accurate)

Anyway, at the court, it turned out that this was a a hearing related to "relief of sanctions". It turns out that the claimant is trying to continue with the case and had completed the N244 form but had failed to provide the "evidence" to reinstate the case as per CPR 3.9.

The judge made clear that the claimant didn't really know what he was doing and should probably get legal advice. The judge then asked me whether I was happy to let the claimant proceed with the case or whether the claimant should produce the CPR 3.9 evidence after which the judge would decide whether the case should go ahead or be dropped.

I chose the latter option and the claimant was told to provide the CPR 3.9 evidence within 2 weeks, after which a 30 minute hearing would be arranged between the 2 parties and the court to decide whether the case should continue or be dropped.


It turned out that the reason the case was previously struck out was that the appropriate fees hadn't been paid. The claimant says the letter was lost in the post (normal mail) and has a copy of the letter and a cheque stub showing that the payment was all there. However the court received nothing.
I suspect that the letter just wasn't posted by accident...after all, who sends a cheque to the court without it being recorded delivery?

There also seemed to be a few months delay between the claimant being informed the case was struck out and them trying to reinstate the case which the judge noted - presumably the reasons for this delay would be in the CPR 3.9 evidence?


Anyway, my question here is - what can I expect to happen in the next hearing - what kind of evidence can I expect the claimant to produce and what should I be saying to the judge to ensure the case is dropped?

Thanks,
JBoss

[JBoss]

bump

[R0b]

Hi,

When a party has failed to comply with a court order or failed to follow the Civil Procedure Rules then the court can strike out a claim. To reinstate the claim, the affected party must make an application for relief from sanctions, and this is CPR 3.9 the judge was referring to.

To be granted relief from sanctions, the court must follow the 'Denton criteria' which were derived from the Court of Appeal case Denton v TH White Limited. The criteria to be applied is a 3 stage test:

1. Was the breach significant or serious? Unless the breach is minor, for example where the other party is not prejudiced by the breach. However, almost always the court will deem a breach of non-compliance of the CPR or any court order to be significant or serious. Failure to pay the hearing fee would normally constitute a serious or significant breach because it is fundamental to the legal process in ensuring that a trial date is set and the ability for you to prepare you case, rather than the claim sitting in limbo doing nothing and wasting court resources.

2. Are there any plausible reasons why the breach occurred? A good reason needs to be provided and although the list is not exhaustive, good reasons could include: the applicant suffered an injury or illness which prevented them from complying or in some cases the court may impose an unreasonably short deadline that the applicant simply can't meet or if the court had made several errors with regards to the claim such that the applicant was unsure what was being asked of them (happens sometimes when several orders are issued in a short space of time and then creates confusion). Normally being unorganised is not a good reason.

In this case, however, if the claimant can show that he had a proof of postage receipt but the cheque was lost, that could likely mean there was a good reason since there is no obligation for parties to send correspondence or letters by signed for delivery.

3. The court must consider all of the circumstances of the case as to whether relief should be granted. The court will generally apply this test by reviewing the answers to stages 1 and 2 and then also the overriding objective in the CPR (you can read the overriding objective here). Other factors may be taken into account such as whether the application was made promptly and there have been cases where the courts have refused relief because the application failed to act promptly.

You can write arguments opposing relief from sanctions which is usually in the form of a witness statement and there are a plethora of case law on this subject but I suggest you come back to us once you have received the evidence and then a court date and we can help you prepare some responses if you do wish to oppose the relief.

[JBoss]

Hi Rob,

Thanks for the response...it's a little clearer now.

When I get their evidence, I'll reply back here.

Thanks,
JBoss

[JBoss]

Hi all,

As luck would have it, I've just received the CPR 3.9 evidence from the double glazing firm.

The relevant sections from the documents are as follows:

Witness Statement:
The hearing fee of XXX was paid by cheque data XX/XX/XXXX (copy of cheque stub and letter enclosed). We then received a letter dated XX/XX/XXXX stating that the case had been struck out due to the hearing fee not being paid.

We did send the fee in good faith. We cannot provide actual proof of this, but the copy of the letter and cheque stub form the evidence that we followed procedure. We did not receive any communication from the Court to state that they had not received the fee, other than the letter striking the case out, so we assumed that it had been received. All subsequent communications with regard to Court hearings have been sent by either special delivery or signed for mail, so that this will not be repeated.

We believe that we have valid reason for the case to be removed from sanctions as we sent the fee and have followed procedures. Attached is Form N244 with this statement supports.
(Photocopies of the court fee covering letter and cheque stub were supplied)


N244 form:
An online civil money claim was submitted on XX/XX/XXXX

A court order was received data XX/XX/XXXX, and following this, the requested information and all relevant documentation, including the witness statement, was sent to the County Court and to the Defendant.

We received a notice of trial date, dated XX/XX/XXXX, stating that the trial will take place on XX/XX/XXXX. Following this, the hearing fee of £XXX was paid by cheque (copy of cheque stub and covering letter enclosed)

A letter was then received from the Court, stating that the case has been struck out due to the hearing fee not being paid.

I am therefore requesting that the case is reinstated as we did follow procedure. I have enclosed a further cheque for £XXX to cover the cost of the claim.



So, it appears that their evidence is just that they have a cheque stub and covering letter. No mention of why they waited 3 months before applying for relief.

The judge did say that a new 30 minute in-person hearing would be scheduled after 14 days - so I'll be waiting for that letter.

In the meantime, what are your thoughts on how best to convince the judge that the case should be struck out?

Thanks,
JBoss

[JBoss]

Just to note, the double glazing firm received the struck-out letter at the end of May 2022 - but didn't apply for relief of sanctions until early Sept 2022 - a delay of 3 months.

Again, I suspect their poor admin processes meant it was forgotten about.

Thanks,
JBoss

[JBoss]

Bump...the claimant has sent me their defence in post #8

[Phud]

Hello,

Their statement in post 8 is their Witness Statement supporting their application for relief from sanctions, it is not a Defence.

I assume you, as the Defendant, filed your own Defence to this case last year at some point? This is the only document which you should refer to as a Defence just so the Court never get crossed wires.

In terms of their application, you are able to make submissions to the Court at the next 30 minute hearing that can oppose the judge granting the Claimant's relief and subsequent reinstatement of the claim. After reading the thread, I would be submitting that the Claimants actions have not been prompt and as such the Court should refuse to grant relief, but it may very well come down to the judges opinion on the day.

If the claim is reinstated, it will likely be listed for a final hearing in due course, you should ensure any evidence you wish to rely on at that final hearing has been submitted to all other parties in good time.

[efpom]

What is missing is any statement to the effect that the claimant became aware that the cheque had not been cashed by HMRC.

[JBoss]

Hi,

Thanks for the responses above...

Phud, yes, we have filed our own evidence for the actual windows case with the claimant and the court - all done in good time last year. The window company has also filed their evidence with us correctly. So yes, I should have said their Witness Statement in support of the relief from sanctions.

EFPOM - correct, it appears they didn't check to see if the cheque had been cashed and then they eventually responded to the strike-out letter. Are you saying that the lack of active checking on their part is an issue?


So, I assume our submission should simply focus on

1. Their disregard for the procedures of the court in either not sending out the cheque or in not ensuring that the cheque was received promptly (they've had legal dealings before so must have understood that it should have been sent recorded/registered/secure etc to ensure delivery)

2. Their failure to check that the cheque had been cashed in a reasonable time frame.

3. Their lack of promptness in waiting 3 months after the strike-out letter before applying for relief from sanctions.

Is that right? Or are there other/better arguments?

Thanks,
JBoss

[JBoss]

Hi all,

I've received a court date of 6th Feb 2024 for the Relief of Sanctions hearing.

Based on the details in the above posts - can anyone help me formulate a statement/response/argument that the case shouldn't have relief and that it should be struck out?

All help greatly appreciated!

Thanks,
JBoss

[JBoss]

Hi all,

I've formulated this response - to give to the judge at the hearing...the court docs do not state anything about me providing a statement in writing or anything else - I just need to attend.

If anyone has some ideas to make this stronger, worded better etc then any help would be appreciated.

The hearing date is in 2 weeks.

Thanks
JBoss

>>>
The failure to pay the fees on time, the 3 months delay in submitting the relief application and the claimant being unprepared for the first relief hearing constitute serious and significant failures to comply with court procedures resulting in the trial date of 15/06/2022 being vacated and an additional 2-year delay to the case.

The reason given for the failure to pay the fees on time was that “the cheque had been lost in the post”, however no evidence of the cheque actually being posted has been provided. Similarly, no evidence of any relevant follow-up actions such as, checking whether the cheque had been cashed or notifying the bank that it was lost/stolen, has been provided.

No reason has been given for the 3 months delay in applying for relief.

The claimant was unprepared for the first relief hearing, wasting court resources and time as well as incurring costs unnecessarily on the defendants.

The failures above have caused the defendants to now attend 2 additional hearings related to the claimant’s failure to follow the procedures and directions of the court rather than for the underlying case, resulting in the claimants having to take additional time off work and incur costs.

The delays caused by the claimant’s failure to follow court procedures has/will have resulted in an additional 2-year delay to the proceedings which is wasteful of court resources and time as well as adding further costs and stress for the defendants.
(The original hearing date was 15/06/2022, a new date is yet to be selected.)

The claimant states that the cheque was lost in the post and was not sent “registered/recorded”, however all of the letters we’ve received from the claimant with regard to this case have all been “registered/recorded” (08/04/2022, 20/09/2022, 23/08/2023) when there was no requirement to do so. There is no indication as to why the claimant would send letters to the court unrecorded given that they are equally as important. There is no indication that the postage was paid for, it would be reasonable to expect some form of accounting entry for postage on that day.

The claimant was notified that the case had been struck out on 27/05/2022, yet the relief application wasn't made until 01/09/2022 - a delay of 3 months, further wasting court resources. No indication has been given as to the cause of this delay.

Conversely, the defendants have complied fully with the court procedures and deadlines and contacted the court regularly to get a date for this relief hearing in order to reduce these unnecessary delays.

It is our view that the seriousness of the failure to follow court procedures should result in not allowing relief from sanctions.
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